Opinion
No. CR-272968.
Decided August 13, 1992.
Stephanie Tubbs Jones, Prosecuting Attorney, and Jeffrey S. Margolis, Assistant Prosecuting Attorney, for the state. Suzanne K. Horrigan, for defendant Allen Hunter.
This case was tried to the court without a jury.
The defendant has been charged and tried for "unlawfully" and "knowingly" possessing cocaine in violation of R.C. 2925.11.
The arresting police officer testified that he found the defendant in the kitchen holding a glass pipe containing cocaine residue. The officer volunteered that the actions of the defendant indicated that the defendant was, in fact, trying to take the pipe from his girlfriend, who was nearby and to whose cocaine use the defendant objected.
The evidence is clear that the defendant knew that cocaine residue was in the pipe. Although the defendant knew that cocaine residue was in the crack pipe, the court has a reasonable doubt as to whether the defendant had any unlawful intent when he possessed the glass pipe. Indeed, the preponderance of the evidence suggests that he was probably trying to stop his girlfriend's cocaine use.
The prosecutor argues, however, that the defendant's intent in holding the pipe is irrelevant, that the only issue of mental state is whether the defendant knew that the pipe contained cocaine, and that the only exceptions for knowing possession of cocaine are those found in R.C. 3719.14. Stated in summary fashion, those exceptions are: (1) a common carrier or warehousemen lawfully storing or transporting a controlled substance; (2) a law enforcement official obtaining or possessing drugs for a law enforcement purpose; (3) an employee or agent of a person entitled to possess a drug; and (4) "any agent or employee of a person * * * whose possession is for the purpose of aiding any law enforcement official * * *."
By stating that an "agent or employee of a person * * * whose possession * * * is for the purpose of aiding any law enforcement official" does not violate the criminal proscription against knowing possession of an illegal drug, the statute clearly intends to create an exception for individuals assisting law enforcement by making purchases of illegal drugs under police control. The exception articulates a policy of not criminalizing possession by those attempting to aid law enforcement.
Does R.C. 3719.14 exhaust the exceptions to "knowing" possession of an illegal drug?
The court believes that R.C. 3719.14 should not be viewed as an expression of legislative intent to preempt judicial interpretation of the Criminal Code. It should be noted that R.C. 3719.14 is not included as part of R.C. Title 29 — the Ohio Criminal Code. Rather, it is an express grant of authority under the title relating to the regulated manufacture and sale of drugs. The court believes that R.C. 3719.14 is most properly seen as an attempt to assure that judicial interpretation would not criminalize the conduct set forth in the section rather than an attempt by the legislature to exhaust the range of circumstances under which an illegal drug can be "knowingly" possessed without violating the Criminal Code.
Although there appear to be no Ohio cases squarely in point, the court has found cases in other jurisdictions which hold that brief and transitory possession of drugs solely for the purpose of disposal is not violative of drug possession statutes. People v. Mijares (1971), 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115, People v. Cole (1988), 202 Cal.App.3d 1439, 249 Cal.Rptr. 601, People v. Ballard (1989), 212 Cal.App.3d 1171, 261 Cal.Rptr. 82. The Mijares doctrine has also been adopted and is cited in Jordan v. Alaska (Alaska App. 1991), 819 P.2d 39.
As the defense has argued, it would not seem to be consistent with the intent of the statute for every parent or teacher who takes illegal drugs from a child to be guilty of a crime at the time such possession occurs — and it certainly would not be the legislature's intent to make it a crime if the drugs were turned over to the police.
Possession of a pipe with cocaine residue with intent to prevent a violation of law or to enforce the law is a defense to a charge of knowingly possessing cocaine.
The court is satisfied that the defendant, in this case, possessed the crack pipe with intent to prevent its use.
The defendant is found not guilty.
Judgment accordingly.